California Employers Can Require Employees to Remain On-Call During Rest Periods

In a recent California case, Augustus v. ABM Security Services, a group of security guards sued their employer, ABM Security Services, for the company’s failure to provide rest breaks during employee shifts. 

While on duty, security guards at ABM patrol guarded buildings, report safety concerns, greet visitors, and respond to emergencies, among other duties.  ABM provides its security guards with 10-minute rest breaks for any shifts over three-and-a-half hours.  However, during these rest breaks, security guards are still required to be on-call, which means that they keep their radios and pagers on during the rest period, remain vigilant, and respond to emergencies as needed.  During these on-call rest breaks, the security guards nonetheless make personal phone calls, surf the internet, and smoke.

In their lawsuit, ABM security guards claimed that ABM should be liable for not providing its security guards with uninterrupted rest breaks.  While California law is clear that hourly employees must receive a 10-minute rest break for any shifts over three-and-a-half hours, it is not clear what an “uninterrupted” rest break really means.  Labor Code section 226.7 states that an employer “shall not require an employee to work during a meal or rest or recovery period.”  The question in this case was whether being on-call is in fact working and therefore not permitted during rest breaks.  The California Court of Appeals answered this question in the employer’s favor.

The Court held that an employer does not violate California law when it requires its employees, in this case security guards, to be on-call during their ten-minute rest breaks.  The Court explained that security guards have far fewer responsibilities when on-call than when on duty; for example, while on duty they monitor traffic, greet visitors, and observe property.  The Court drew a clear distinction between being available for work (on-call) versus actually working (on duty) and determined that the Legislature, when drafting Labor Code section 226.7, intended only to prohibit actual work during rest breaks—not being available to work.

Further, the Court noted that for meal periods, the Legislature specifically required in the Wage Orders that an employer completely relieve its employees of all duty for a 30-minute meal period.  However, there is no such equivalent language for rest breaks, suggesting that the Legislature did not intend the same prohibition to apply.  In addition, while employers need not pay for uninterrupted 30-minute lunch breaks, employers must pay for rest periods.  This difference provided further basis for the Court’s decision that while employees cannot be on-call for meal periods, they can be on-call for rest periods.

This recent case does not change the requirement in California that employers provide all hourly employees with a ten-minute rest break for any shift that is longer than three-and-a-half hours.  To learn more about meal and rest periods in California, visit our earlier blog here.